Fair Use and Transformation, 1990-2016 What now for libraries and archives?

The cast Benjamin Moskowitz

Pierre Leval Judge, District Court for the Southern District of New York Judge, United States Court of Appeals for the Second Circuit Program on Information Justice and Intellectual Property AUWC LAW

Toward a Fair Use Standard, Harvard Law Review, Vol. 103, No. 5 (Mar

V.

New Era Publications International, ApS v. Henry Holt and Co., Inc.

{ 261 ) Anno OBbo Annre Reginre.

“abridgement” or “fair abridgement” Anne “abridgement” or “fair abridgement” Gyles v. Wilcox, 1740

Story “. . . we must . . . look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the work.” Folsom v. Marsh, 1841 (Leval, 1105)

“. . . factors to be considered shall include- (I) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes . . .” 17 U.S.C. § 107

1990 – Toward a Fair Use Standard “Judges do not share a consensus on the meaning of fair use” “reactive” or “intuitive”

On to transformative use “First, all intellectual creative activity is in part derivative”

Further “If . . . the secondary use adds value to the original . . . this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society”

More “. . . no transformative purposes, fair use should perhaps be rejected without further inquiry into the other factors.”

“Factor one is the soul of fair use.” And even “Factor one is the soul of fair use.”

Campbell v. Acuff-Rose Adam Etheridge, CC:BY-SA Jac. De Nijs / Anefo

A transformative hero?

Beyond commerciality “. . . the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.” “. . . the more transformative the new work, the less will be the significance of other factors . . .”

Appropriation Cariou v. Prince Seltzter v. Green Day Kienitz v. Sconnie Nation TCA v. McCollum

Author’s Guild v. HathiTrust

Author’s Guild v. Google

And now?

Of what’s to come ? ? ?

Of what’s to come

Thanks Dillon Wackerman dwackerman@smu.edu